Court overturns San Francisco officer's suspension for amateur videos

SAN FRANCISCO, Calif. — The San Francisco police officer whose amateur videos were denounced by city officials as racist, sexist and homophobic won an appeal of his temporary suspension Thursday, as a court suggested that Police Chief Heather Fong had acted out of an excessive concern for public relations.

Suspended San Francisco police officer Andrew Cohen plays one of his award-winning documentaries about the SFPD at his home in Berkeley, Calif., Dec. 2005. (AP Photo/Eric Risberg)

The state Court of Appeal in San Francisco did not decide whether Officer Andrew Cohen was guilty of misconduct for posting the videos on his Web site in 2005. That issue is awaiting review by the city Police Commission.

To suspend Cohen immediately without pay, however, Fong had to show that there was an emergency, the court said. The city's ultimate explanation -- that the Police Department needed to show people that it disapproved of the videos -- would justify suspending any officer whose conduct angered some people or got bad publicity, the court said.

"Temporary suspensions may not be used as a shortcut method of taking punitive action against an officer or as a tool for conducting public relations damage control,'' Justice Sandra Margulies said in the 3-0 ruling.

Harry Stern, a lawyer for Cohen, said the ruling was narrow but directly on target.

"This case has really been about nothing more than PR and damage control for the mayor and chief of police,'' Stern said. "They overreacted and then scurried to find some way to make Officer Cohen the scapegoat.''

The Police Department and Mayor Gavin Newsom's office referred inquiries to City Attorney Dennis Herrera. His spokesman, Matt Dorsey, said the city would comply with the ruling by rescinding Cohen's suspension and restoring his pay and benefits. The court said he had missed four days' pay.

"It is not a blockbuster ruling,'' Dorsey said. Eighteen other officers have sued the city for their suspensions over the same videos, but Dorsey said the city wasn't prepared to concede a claim by their attorney that Thursday's ruling meant their suspensions would also be overturned.

Cohen, an officer since 1995, shot videos showing officers responding to mock calls. One showed a homeless black woman railing against white people after apparently being hit by a patrol car. Another showed an officer ogling a woman he had stopped for a traffic violation.

One officer was shown dressed as a transgender person, and a policewoman was filmed putting on lipstick during a mock drug raid. Another video showed officers attempting tai chi to vaguely Asian music, then heading into a massage parlor.

Newsom joined Fong at a December 2005 news conference where they made some of the videos public and called them shameful. Fong announced the suspensions of Cohen and 23 other officers at the Bayview station without pay.

All returned to work within a week, but some, including Cohen, remain assigned to desk jobs. No long-term disciplinary action has yet been taken against them.

Cohen has said that several past police chiefs had given him permission to make humorous, morale-boosting videos for the department, and that he had been surprised by Fong's reaction.

Cohen's temporary suspension was upheld last year by Superior Court Judge Ronald Quidachay, who said the City Charter authorized the chief to suspend an officer while disciplinary action was being investigated.

But the appeals court said the Police Department can suspend an officer without a hearing only if it can show that the officer's continued employment poses a risk of harm to the public or the department.

The court said the department offered a shifting set of reasons for suspending Cohen before settling on the rationale that Fong needed to drive home the message that she disapproved of the videos.

The evidence fails to show that the explanation was genuine, that it was ever communicated to Cohen, or that public awareness of the videos amounted to a real emergency, the court said.